The appellant points out that the amendment to the Abatement act, if valid, has the effect of repealing an old and well settled rule that election contests abate on the death of the contestee, and that its validity should be carefully scrutinized; that paragraph 138 of chapter 46 (Cahill's Stat. 1933, p. 1267,) provides that every elective office shall become vacant, among other contingencies, upon death of the incumbent; that section 9 of the Municipal Court act (Cahill's Stat. 1933, p. 946,) provides for the filling of vacancies by election, and that to permit an election contest to proceed after the office becomes vacant amounts to allowing the court by judicial decree to fill the vacancy instead of requiring it to be filled by election, in accordance with the statute; that certain liabilities and consequences in personam follow upon the final decree in an election contest case, and that to permit or require anyone other than the legal representative of the deceased to appear and defend, taking the right away from the estate and placing it in the hands of a stranger, is to deprive the estate of the deceased of due process of law. On the other hand, it is contended by the appellee that it was the intention of the legislature to guarantee to a successful candidate his right to the office as conferred by the electors; that the legislature intended to provide for the survival of the action as a remedial measure, because of the two decisions of this court in Olson v. Scully, 296 Ill. 418, and People v.Taylor, 342 id. 88, holding that an action necessarily abates upon death of the contestee; that the contestant's right to the office is conferred by the election rather than by the decree of the court; that the act, being remedial, is to be liberally construed; that the prime purpose of the legislature was to provide a means for ascertaining who actually received the higher number of votes, and that the public has an interest in this question; that when an office is contested and the person who actually received *Page 390 the larger number of votes dies during the contest, there is no vacancy unless the contest is decided in favor of the contestee.
Counsel for appellant state in their brief that they have been unable to find any case in this or any other jurisdiction which is in point on the main issues, and counsel for the appellee, although apparently equally diligent, have cited none. The parties agree, and there can be no doubt, that under the prior decisions of this court an election contest is an adversary proceeding in personam, the only persons having an interest being the contending parties, and that when a contestee dies the action abates. (Olson v. Scully, supra;People v. Taylor, supra.) In the Olson case we used the following language: "There was no provision under the common law for the election of an individual to office. Such matter is wholly statutory. There is no such thing as a common law right to hold an office but such right is purely statutory. The right to an office is not a property right. A public office is not property, nor are the prospective fees of office the property of the incumbent. An office is a legal right to exercise a public function or employment. It is not the subject of sale, purchase or incumbrance. The term 'office' implies a delegation of a portion of the sovereign power of the government to the person filling the office. It is erroneous to say that an incumbent owns an office or has any title to it. (Bowen v.Russell, 272 Ill. 313; People v. Barrett, 203 id. 99; People v.Kipley, 171 id. 44; Donahue v. County of Will, 100 id. 94.) The right to contest an election is not a natural right and did not exist at common law. It exists in this State by statute and is neither an action at law nor in equity, though the proceeding is governed by rules of chancery practice. — Brinkman v.Bowles, 280 Ill. 27; Bowen v. Russell, supra; Conway v.Sexton, 243 Ill. 59; Quartier v. Dowiat, 219 id. 326; Weinberg v. Noonan, 193 id. 165; Rodman v.Wurzburg, 183 id. 395." In the *Page 391 later case of People v. Taylor, supra, we re-affirmed and adhered to our language and holding in the Olson case, and in the opinion, referring to the Abatement act, used the following language: "Statutes in derogation of the common law are to be construed strictly. The so-called abatement statute, which may be more properly denominated a survival statute, abolishes the common law rule of abatement in those proceedings included within its scope. The act is therefore a change or limitation of the common law rule and provides for survival of actions of the character and under the circumstances therein described. It is not contended that the Primary act or any other statute of the State provides for survival of a contest proceeding."
On the collateral question of incidents to a public office I find two cases which have a bearing on the question before us. The first of these is Mayfield v. Moore, 53 Ill. 428, in which it was held that the legal right to hold an office confers upon the person so entitled to hold, the right to receive and appropriate the fees and emoluments legally incident thereto. In that case, which involved the office of sheriff, a certificate of election was issued to one of the candidates who appeared to have been elected. He was duly commissioned and entered upon the performance of the duties of his office, receiving the fees and other income therefrom. It was later judicially determined on an election contest that his opponent should have been declared elected, whereupon the opponent proceeded by assumpsit for the recovery of the fees received by the prior incumbent. It was held that the successful contestant was entitled to recover not only all such fees as had been collected by the incumbent subsequent to the judgment of the court but all that he had received from the time he took office, being allowed, however, because of an element of good faith, to retain his reasonable expenses incurred in earning the fees. The holding in that case was re-affirmed and adhered to in the later case of Kreitz v. Behrensmeyer, *Page 392 149 Ill. 496, notwithstanding the change of constitutions that had occurred between the two decisions. In the case last cited the claim was enforced against the estate of the deceased incumbent, who had unlawfully held the office of county treasurer.
The Election law (chap. 46) provides for two different kinds of election contests. One of them, covered by sections 117 and 118, provides for a contest of the result of an election wherein such matters as constitutional amendments or a question of public policy or public referendum are involved. The procedure in such a case is more in the nature of an actionin rem. The public is made a party and the voters are permitted to intervene, and while the court may grant a judgment for costs against intervenors, it is only against such as have voluntarily made themselves parties to the suit. It is provided that where the contest relates to a constitutional amendment or other public question of State-wide interest there shall be no defendant. No summons is provided for, but only notice to be filed with the Attorney General. As distinguished from this act and as a contrast thereto the other form of contest provided for is, as this court has always held, strictly an action inpersonam. The incumbent is the defendant in the case and must be served with summons in the same manner as is provided in cases in chancery. Neither the Attorney General, the State's attorney nor any body politic or corporate is made a party to the suit, and the action proceeds, as we have held, as an adversary proceeding, in personam. It is not contended in the briefs herein that it was the intention of the legislature by the amendment to the Abatement act to change the fundamental nature of the action to one in rem. Upon this point the appellee tacitly admits the necessity for an adversary in order that there may be any survivorship of the cause of action. From a constitutional standpoint, therefore, the case necessarily turns upon the sufficiency and the propriety of *Page 393 the legislative attempt to provide such an adversary for the contestant, or, putting it the other way around, a representative for the deceased contestee. In the amendment to the Abatement act itself the legislature makes no mention of any public interest in the proceeding and uses no language to indicate an intention to guard the public's rights. So far as this theory of legislative intent is before us for consideration at all, it is merely a matter of inference drawn by the appellee, based on his arguments as to what he calls the unfairness of the common law rule as interpreted by our prior decisions. In order to sustain this view it is necessary for us not only to assume the existence of this intention but to indulge the presumption upon no other premise than above indicated. This line of reasoning, in my opinion, carries us outside of our judicial sphere and into the realm of legislation.
Elections were unknown at the common law, and both they and the procedure for contesting them are of purely statutory origin. (Olson v. Scully, supra.) The only authority, therefore, for contesting the election, and the foundation upon which this suit must rest, is to be found in the statute pertaining thereto and in the amendment to the Abatement act. In neither of these acts is the public interest mentioned, nor is there any language used which might be said to conflict with our previous holdings or to indicate any intention to change the action from one in personam to one in rem. Neither the State nor any political subdivision is made a party. Neither the State's attorney nor the Attorney General is required or permitted to intervene, nor may any other person in any way represent or interfere with the contestee so long as he lives. It is the apparent policy of the legislature to leave the determination and certification of the election results to the duly constituted administrative officers, trusting to the purely personal remedies which may be applied at the instance of interested parties to check and expose fraudulent *Page 394 and unfair matters by such judicial procedure as has been provided and by providing penalties for certain frauds in order to discourage them. If the legislature intended the voter who is to be permitted to intervene or volunteer to be a representative of the public interest it would doubtless have said so and provided for his representation by the Attorney General or State's attorney. Nothing of the kind appears in the act, but, on the other hand, it is definitely provided that after he appears in the case he is "to defend the same." Furthermore, if it was the intention that this intervening voter should represent the public there would doubtless have been certain safeguards provided as to his selection. So far as this act is concerned, that selection is left as a purely arbitrary one on the part of the court. It is not required that he be either of the same or the opposite political party as the contestee, nor even that he be fair or neutral. No rule or guide is provided for the judge in this matter, and there is nothing in the act to prevent the court from making an appointment of a person whose interests might be directly opposed to the cause he is required to represent. The action of the court in this respect is not made subject to review. There is nothing in the act to prevent the intervenor from suffering a default judgment or from stipulating away the rights of the deceased contestee if he should happen to be so inclined. Neither is there any provision for the appointment, employment or compensation of counsel to represent the representative of the deceased contestee. I am of the opinion that the entire procedure attempted to be outlined is not only unreasonable but inappropriate for the protection of the public interest even if the matter should be considered as a proceeding in rem, and it is equally inappropriate and unjust as to the estate of the deceased contestee.
The primary purpose of an election contest is to determine the legality of the election of the man declared elected. No contest can be brought until someone has been declared *Page 395 elected nor against any other person than he. It is true that where the contestant is an opposing candidate the statute provides that the court may, as an incident to its final decree, project the contestant into office. But this is an incident, only, and ancillary to the main purpose of the proceeding — i. e., the trial of the right of the declared incumbent to hold the office. If the incumbent died before the filing of the election contest it could not even be contended that such a proceeding could be started for the mere purpose of having the unsuccessful candidate declared elected. This would be directly contrary to the provisions of the act declaring the office vacant under such circumstances and makes clear the ancillary and secondary character of the relief which was granted by this decree.
The question under consideration would be entirely different if there were nothing involved in an election contest except the right of the contestee to continue holding the office after the entry of a judgment, or, in certain cases, the right of the contestant to assume it at that time. On the record before us the right of the contestee to continue holding the office has been definitely terminated by his death, leaving nothing before the court for consideration but the possible right of the contestant to assume the position and such further consequences of a personal nature as may follow. It must be conceded that a judgment in personam, at least for costs, may follow, and that certain personal rights and liabilities necessarily follow the result of such a decree. It is further obvious that after the death of the contestee no such liabilities can follow except to the detriment of his estate.
We have seen from the authorities cited above that a determination of the contest also determines the right, as between the contestant and the contestee, to the salary, fees and emoluments of the office during the time it has been held by the contestee. The central and vital issue in an election contest is the right to hold the office, and a *Page 396 judgment against the incumbent on this issue would be forever decisive of it as between the parties and their privies. In the event of the contestee being defeated and the contestant thereafter bringing suit for the fees and salaries which the contestee received, the final judgment in the contest case would be an effectual estoppel on that issue, not only as to him but as against his heirs, executors and administrators, if the contestee died subsequent to the final judgment in the contest case. We have in this amendment, then, an attempt on the part of the legislature to substitute for a contestee, upon his death, a stranger to him and his estate. The suit at this state of the proceeding can have no further interest to the estate so far as any possible benefit or advantage is concerned but carries with it the possibility of a liability of the estate to the contestant. Under the act in question this stranger would have full control of this suit, neither restrained nor guided by any legal directions or obligations. He is not required to give any bond or provided with counsel or any means for obtaining counsel, nor is he in any way limited or restrained from confessing judgment, stipulating away valuable rights or neglecting his duties. Neither the duly appointed administrator or executor, if any, nor the next of kin of the deceased, are given any rights or protection. They are not permitted to intervene, but, on the contrary, would be forced to stand by without right of protest in a suit which might vitally affect their property rights. The law is elementary and long settled that one cannot be bound by a judgment to which he is not a party and in which he is neither actually nor theoretically heard. Any attempt to so bind him or his estate is not due process of law, and if this be construed as the intention of the legislature it is necessarily void.
Conceding the power of the legislature to set up such machinery as it sees fit for the protection of the public interest in elections, within constitutional limits, I am forced *Page 397 to conclude that whatever its intent may have been in adding this particular amendment to the Abatement act, it falls short of accomplishing the ends claimed for it by the appellee or the effect given it by the county court of Cook county. The action itself remains essentially one in personam, with personal consequences. Upon the death of the contestee the office became vacant and the contest proceedings necessarily abated.